Antonin Scalia was, easily, one of the five greatest Supreme Court justices in U.S. history. He was, indisputably, the greatest justice of the past fifty years. For his immense contributions to constitutional discourse, for the soundness of his constitutional vision, for the rigorous and vigorous quality of his opinions, for the fearlessness and peerlessness of his constitutional vision, Justice Scalia clearly belongs in the pantheon of greatest Supreme Court justices of all time.
My personal Top Five list would include, in addition to Scalia, the great Chief Justice John Marshall and the classically brilliant Robert Jackson. Filling the last two slots is a bit harder. Plausible nominees include Earl Warren, Harlan Fiske Stone, Hugo Black, the first Justice John Harlan, and perhaps Joseph Story. Other options—but names I think must ultimately be rejected—include Oliver Wendell Holmes, Felix Frankfurter, and William Brennan. Each of these men, for all their intellectual or political or linguistic brilliance, was severely deficient on one or more of the crucial criteria I will discuss below.
Making such a bold comparative claim on behalf of Antonin Scalia requires some criteria for assessing true greatness in a Supreme Court justice. I submit that the standards for measurement are as follows: (1) the soundness of a justice’s constitutional principles (an absolute prerequisite); (2) the vigor, candor, and persuasiveness with which they are held, articulated, and publicly defended; (3) the public moral courage of the man or woman, in terms of fearless willingness to adhere to sound principles and to the rule of law, even in the face of public sentiment and collegial opposition; (4) the sustained avoidance of commission of a clear legal and moral wrong—that is, the avoidance of atrocity and complicity in atrocity in one’s votes and opinions; and, last and least, (5) success in moving the Court, and the nation, toward constitutional and rule-of-law faithfulness.
In each of these categories, especially the first four, Scalia shines.
Fidelity to Principles
In terms of the soundness of his constitutional principles, Antonin Scalia practically sets the benchmark. He was committed, above all else, to faithful adherence to the rule of law. In the context of constitutional interpretation, that meant fidelity to the original public meaning of the words, phrases, and structure of the Constitution’s text, understood in historical and linguistic context, and accounting for background norms and specialized term-of-art usages. These are the sound principles of constitutional interpretation.
- One occasionally might have disagreed with Scalia’s application of these principles in specific cases—I did, every now and then—but there was no question of their correctness or of Scalia’s principled commitment to them. Even when Scalia’s conclusions were subject to debate, his near-flawless methodology supplied the correct criteria for critique. And there were, in his case, clear criteria and strict standards to which he could be held absolutely accountable—something that is not true of all, or even most, Supreme Court justices.
Scalia was the very antithesis of the lawless, result-oriented, political-preferences-are-my-law judge. He did not allow his personal or political views to dictate his legal interpretations, even if sometimes they coincided. And he regularly and cheerfully ruled against his apparent or acknowledged political preferences because his objective view of the law required such an outcome. In terms of purity of principles, Scalia stands nearly peerless.
Vocal and Public Defense of Principle
The next criterion of a justice’s greatness is the vigor, candor, and persuasiveness with which he defends and articulates his or her sound constitutional views—that is, the quality and logic of a justice’s judicial opinions. Here, Scalia once again is practically unmatched. (Marshall and Jackson are peers; Earl Warren trails badly.) Scalia’s writing was simply magnificent—his opinions are deliciously readable—his logic and reasoning relentless, his pen pointedly poisonous whenever the situation seemed to call for it. Some of his dissents—in the independent counsel case, Morrison v. Olson (1988); in the atrocious abortion cases decided during Scalia’s thirty years on the Court (Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Stenberg v. Carhart (2000); and in the first same-sex marriage decision, United States v. Windsor (2013)—rank among the best judicial opinions of all time. They devastate the majority opinions they criticize, and rightly so. In terms of judicial craft, Scalia was a giant.
Scalia’s writing vigor and analytic rigor had an enormous impact. The Apostle of Originalism, he transformed the terms of legal public debate almost singlehandedly. By the late 1970s, the idea of fidelity to the original meaning of the Constitution was practically dead in constitutional discourse. There were other legal “conservatives,” but they were mostly reduced to nibbling around the edges of entrenched liberal legal activism. Scalia, the Scourge of Judicial Activism, dug it out from the roots. Beginning with his appointment to the Court in 1986, Scalia’s powerful theoretical construct—shared by others, to be sure, but which his position made him singularly well-poised to advocate and implement—changed everything. Thirty years ago, original-public-meaning discourse was barely on the table. Today, it is the main course.
Many of Scalia’s opinions are positively prophetic—not in the modern sense of “predictive,” but in the traditional Old Testament sense of condemning society’s or its leaders’ faithlessness and injustice. Scalia’s opinions hold the Court and the nation accountable. Do not misunderstand: Scalia was a man of religious faith, but he never deemed it appropriate to write those principles of faith into law. Scalia’s call for faithfulness and railing against injustice was directed at those who would betray—and had betrayed—the Constitution, that fundamental article of (supposed) political and moral faith for American society. The Apostle of Originalism was thus also a Powerful Prophet of the Law. He stood, prophetically and fearlessly, for the rule of law.
That brings us to the next criterion of greatness as a judge: public moral courage, the willingness to stand correctly for principle in the face of opposition, criticism, or conventional wisdom. On this standard, Antonin Scalia beats everybody. Scalia was fearless. Such public moral courage seemed to come so naturally to him that one would laugh at any suggestion that Scalia might ever be pressured, intimidated, overawed, or influenced by anyone else—society, colleagues, or critics—to write or vote contrary to his true conviction. One is even hesitant to use the word “courage” to describe this virtue. Scalia seemed actually indifferent to such concerns.
The moral courage that was second nature to Scalia is in fact a remarkably rare judicial (and human) virtue. Most people compromise their principles for the sake of expediency. One has only to look at Scalia’s famously sardonic observation in his dissent in last summer’s Obergefell v. Hodges decision, a decision that invented out of thin air a national right to same-sex marriage. He wrote that he “would hide [his] head in a bag” in shame if he ever, “even as the price to be paid for a fifth vote,” signed on to an opinion as vacuous, lawless, and embarrassing as Justice Kennedy’s majority opinion, full of the “mystical aphorisms of the fortune cookie.” This stinging critique was directed at his smart but unprincipled liberal colleagues on the Court, who were willing to hold their noses and sign on to anything to get the result they wanted. There was not a tactical bone in Justice Scalia’s judicial body and he found such trimming insufferable in others. Antonin Scalia did not suffer fools gladly, as his Obergefell dissent well illustrates.
There are precious few Scalia majority opinions over the course of thirty years that might be subject to criticism on this score of trimming, and even those few are arguable. Typically, Scalia might accept bad premises or precedents for the sake of argument, in order to show that even on such premises his conclusion remained correct. But that was about as far as he would ever go to accommodate colleagues. Scalia would never consciously trade away the birthright of principle for the mess of expediency, even if it were in the service of obtaining what he thought a correct outcome.
Some found that a fault. It wasn’t. It was the moral courage of one who would rather stand on correct principle than prevail in result.
Avoiding Outright Atrocity
Scalia may have ruled incorrectly in a few cases (in my humble opinion). There is fair room for argument on some cases, even among people who are guided by the same methodological premises and principles as Scalia. But Scalia never voted in an atrociously wrong, wicked, or lawless fashion, producing hideous human consequences.
This distinction sets Scalia far apart from other gifted writers or skilled practitioners of the legal craft, who fail this essential test for great justices. Chief Justice Roger Taney is rightly known not for his long service and otherwise distinguished tenure but as the result-oriented, pro-slavery, willful Constitution-distorter who authored the unforgivable Dred Scott v. Sandford opinion, holding that blacks could never be citizens because they were an inferior race subject to enslavement for their own benefit, and that expansion of slavery was a (made-up) constitutional right.
Oliver Wendell Holmes wrote some magnificent dissents but some horrific majority opinions, indefensibly upholding suppression of free speech and press, spinelessly tolerating schemes of racial voting suppression, and nauseatingly embracing—even cheering—lawless discrimination against and forced sexual sterilization of mentally disabled persons. Holmes embraced eugenics: “Three generation of imbeciles are enough.”
Felix Frankfurter was a pompous windbag, in love with his own image and judgment according to the whims of his own preferences, who signed on to—and wrote his own concurrence in—the Japanese internment case, Korematsu v. United States. William Brennan accomplished much, but manipulated the law shamelessly to suit his liberal agenda, and was a vigorous and awful supporter of an absolute constitutional right to abortion of a living human fetus, for any or no reason, for the full nine months of pregnancy. Even the great Joseph Story wrote the Court’s misguided opinion in Prigg v. Pennsylvania upholding the Fugitive Slave Act’s clearly unconstitutional features.
Justice Scalia never twisted the Constitution to accomplish or entrench a wicked result. The worst thing he ever did as a justice was to write an erroneous (but neither atrocious nor indefensible nor result-oriented) majority opinion adopting a tendentious reading of the Free Exercise of Religion Clause. Overwhelmingly, Scalia not only deployed sound constitutional methodology but also reached sound conclusions. Unlike other supposed “great” justices, Scalia never embraced slavery, eugenics, racial internment, suppression of free expression, or the killing of unborn human infants—horrors that other justices embraced and constitutionalized.
An Enduring Legacy
What about the final criterion of judicial greatness—a justice’s “success” in moving the Court and the nation in correct constitutional directions? Here, a brilliant leader-jurist like Chief Justice John Marshall or a skilled politician-tactician like Chief Justice Earl Warren scores well, and Scalia arguably less so. As noted, Scalia was less interested in coalition building than in constitutional fidelity. In part this is attributable to his religious faith and character: Scalia believed we are called more to be faithful than to be “successful” in worldly terms.
But Scalia’s influence should be measured by more than just majority opinions crafted. A prophet has a different kind of impact. Scalia turned a constitutional culture around—in the courts, in the nation’s classrooms, in public discourse—and that influence looks like it will be an enduring one. As he stated at my law school fewer than six months ago, “I’m writing for you guys”—for the books, for posterity, forever.
On every count, Justice Scalia rates as one of the handful of greatest Supreme Court justices of all time. It will be impossible for any successor to measure up fully to his greatness. (Successor, not replacement, as no replacement is possible for Antonin Scalia.) But as the nation begins to debate a possible future appointment and the proper timing thereof, it would do well to establish as binding criteria for any nomination those on which Scalia ranks as one of the all-time greats: fidelity to the constitutional principles for which he stood, firmness and fearlessness in defense of them, and the force of intellect and legal skill to advance them persuasively and powerfully.